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ADDRESS 



OF 



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HON. JOHN K. KANE, 



BEFORE THE 



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FRANKLIN INSTITUTE, 



AT THE 



CLOSE OF THE EXHIBITION OF AMERICAN MANUFACTURES, 



OCTOBER, 1849. 



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ADDRESS 

DELIVERED AT THE CLOSE OP THE NINETEENTH EXHIBITION OF 

AMERICAN MANUFACTURES, 

HELD BY THE 

FRANKLIN INSTITUTE OF THE STATE OF PENNSYLVANIA, FOR THE 
PROMOTION OF THE MECHANIC ARTS. 

OCTOBER, 1849. 



BY HON. JOHN K. KANE. 



The Committee of Exhibitions have honored me with an invitation to 
make an address to you this evening, and I have not felt myself at liberty 
to withhold so humble a contribution to the cause of which our Institute 
is the eldest American representative. Yet, I am sensible that their selec- 
tion has not been a happy one ; for the course of thought and reading, to 
which a sort of necessity has addicted me for some years past, ^as been 
too exclusively professional, to allow me the hope of engaging the favor- 
able attention of a mixed audience. 

Limited from this cause to a narrow range of topics, I have concluded 
to offer you a few remarks on the apparent imperfections of our system of 
Patent Laws, — those laws, which have for their object to protect and 
reward improvements in the useful arts. The number of such improve- 
ments, which must have attracted your notice in the present exhibition, 
may perhaps invest this subject with a certain degree of interest. 

The policy, as well as duty,of returning to inventive genius a fair com- 
pensation for the benefits it has conferred upon society, is not in our times 
a topic for argument. In other countries, its recognition may emanate from 
what is still called Royal Prerogative, but which is in truth only a trust, 
held in the name of an individual, for the benefit of the many, — or it 
may be referred more directly to the popular sense of expediency and 
justice, as expressed in acts of occasional legislation, — but among civilized 
states, it is known everywhere, sometimes as a boon of power, more 
frequently as a right. In our own land, it is expressly declared to be 
among the powers of Congress, " to promote the progress of science and 
the useful arts, by securing, for limited times, to authors and inventors, the 
exclusive right to their writings and discoveries." 



The earliest patent law of the United States was passed by the first 
Congress that assembled under the Constitution. It was almost of course 
imperfect ; for in the year 1790 no foreign nation had matured a system of 
provisions on the subject, from which ours could be profitably copied. 
Nevertheless it was a good law, and contrasted favorably with the law of 
England of that day: indeed, I have sometimes doubted whether, brief 
as it is, it does not furnish a better basis for the system than any of those 
which have followed it. But be this as it may, the legislation of more 
modern times, if less perfect in its outline, has been progressively more 
and more liberal in its details; and the Courtsof Justice have contributed, 
by the increasing liberality of their interpretations, to amplify the benefits 
of the system. 

Yet it is still far from perfect : neither the patentee nor the public derives 
from it the full and appropriate measure of security and benefit. The au- 
thor of a meritorious invention finds himself, not unfrequently, made poorer 
by the letters patent that profess to reward him ; and the mechanical com- 
munity is infested by swarms of impostors, who bear an apparent title, 
under the patent laws, to levy arbitrary exactions upon industry. 

Let me explain how this happens. An ingenious man has invented a 
labor-saving machine, and obtained a patent for it. He has begun to use 
it himself, and has sold licenses to others. It is a highly useful machine, 
w^e will suppose, — producing, it may be, an entire revolution in some 
branch of art ; its usefulness universally admitted, by the unanimity with 
w^hich it is adopted among his brother mechanics. It is, in a word, just 
the sort of invention that confers on society the highest benefit, and for 
which society is most anxious to reward him abundantly. 

Now, just in proportion as his invention is valuable, just in that propor- 
tion is the temptation to defraud him of it. The invention is at once 
pirated : litigation follows ; for his exclusive title is worthless, unless vin- 
dicated ;-— and in this litigation, all who have invaded his rights, and all 
who have an interest in breaking them down, present a combined front 
against him. 

Libraries are rummaged, to find in ancient books, dreamy, half-formed, 
unpractical notions, bearing more or less of the same complexion with 
the matter of his invention ; — witnesses come from every quarter, to tell 
of contrivances, like his in all but usefulness, that were once upon a time 
put together, in some rude imperfect mechanism, in some out of the way 
place,— and then abandoned; — old machines, that were in the Patent 
OflSce before it was_ burnt, come out from their ashes, refined, improved, 
gifted with new vigor, by the imaginative memory of old men when 
talking of things of the olden time ;— scientific theorists are called in, (and 
there are many such, as impracticable as they are honest, who can see 
nothing new in any new combination of known agents,) to puzzle us with 
their arguments, and to demonstrate, that as the lever, and the pulley, and 
the inclined plane, and the wedge, and the screw, are the cardinal elements 
of the patented machine, and as in fact it consists of nothing else, therefore 
the invention has no novelty, and the patent is void. 

The poor inventor sits all this time in the Court-room, flushed and 
fevered, wondering much, and indignant, perhaps, as he hears that the 
invention, on which he has been wasting his strength and his fortunes for 



a life-time, was known to all the world before he began, though no one 
thought of using it till he took out his patent, and every one uses it now. 

But he has his witnesses also, his books, and his theorists, — and, perad- 
venture, he has been too poor, or too wise, to retain the ownership of his 
patent right, and having sold it out to some corporation or some capitalist, 
he has become disinterested, and may be a witness himself, to detail in 
person the story of his invention. 

The story has been told ; and his case is now in the hands of his advo- 
cates, — skilful and conscientious men, who have sought to master the 
subject, and have succeeded in so far reviving their college recollections 
of mechanical science, as to understand and explain the merits of their 
client. 

Their first business is to teach the Judge his lesson ; and this, if we 
may admit the testimony of the gentlemen of the Bar, is not always an 
easy one. There are few of us, indeed, that hold the Judicial place, who 
must not confess our alienation from all other sciences except our own. 
The Law is a jealous mistress, that tolerates no divided affections or pur- 
suits among those who aspire to her favors. 

But let us suppose this difficulty overcome ; and that the Judge has suc- 
ceeded, during his intervals of leisure, as we term the languid intermis- 
sions between the exhausting sessions of his daily Court, in studying as 
many treatises of mechanics as are indispensable to a knowledge of the 
subject. The next thing is to enlighten the Jury, — twelve men, gathered 
by lot, from the streets and the by-ways, to render unanimous verdicts 
upon oath, — unlearned men, whose office is to determine and apply scien- 
tific truths, when the learned disagree, — arbiters of art, often without one 
particle of instruction in its simplest dialect. 

They retire to their Jury -room ; and there, without books to enlighten 
them, but with an occasional newspaper, perhaps, to lead them astray by 
some distorted view of the evidence, or some ignorant commentary upon 
it, they begin their consultations for unanimity, — stimulated not a little by 
the narrow comforts of a closely locked apartment, their "parlor, kitchen, 
and hall," on the floor of which, when night comes, they are permitted to 
spread their mattresses, and dream of that admirable Procrustean device, 
the boast of Anglo-Saxondom, which claims to expand one conscience 
and contract another, till they shall coincide. If, under circumstances so 
favorable to a harmonious conclusion of their labors, they obstinately refuse 
to think alike, they must be discharged at last ; — and the whole affair, 
with its witnesses, and books, and theories, its expenses and excitement, 



is to be begun over again, and agam, 



and 



again. 



-until twelve "sober 



and judicious men" are found, to concur in the same "true verdict" upon 
their oaths. 

For the sake of hurrying through this detail of incidents, with which 
all of us are familiar, let me imagine at once that a verdict has been ren- 
dered, — that it is in favor of the patent-right, — and that the Judge is so 
far satisfied with it, as to refuse the defendant's motion for a new trial, — 
and that there is besides no legal excuse for submitting the final judg- 
ment, by writ of error, to a Court of Review. The patentee has triumphed, 
— in one cause, — against one defendant, — in one judicial district. Each 
new defendant, each new cause, opens anew the whole question of the 



originality of his invention ; — and for each succeeding trial, in each of the 
thirty odd judicial districts of the United States, from New Hampshire to 
Texas, between Cape Cod and San Francisco, the patentee is to come 
prepared, with all his testimony, to encounter the same vexations, and 
abide the same hazard. 

Is this the just and politic reward of inventive talent, for its self devo- 
tion to the public benefit? — I have seen men, over and again, who 
had grown grey in litigation and penury, by seeking to vindicate for them- 
selves the rights, which the faith of the Government w^as pledged that 
they should enjoy. I have known a patent, among the most meritorious 
that have done honor to our country, which, after the lapse of more than 
twenty years, had produced nothing to the inventor but barren praise and 
substantial wretchedness, still continuing to "hold the word of promise 
to the ear, and break it to the hope." 

On the other side, I have said, that the present patent laws do not se- 
cure to the public its just and stipulated share of advantages. Under the 
law now in force, inventions undergo a much more careful scrutiny before 
the patent issues, than used to be the case. But there are, nevertheless, 
numerous patent rights in existence, which are without essential merit ; 
and which recoil from judicial scrutiny, either because of a want of origi- 
nality in the patentee, an imperfect developement of his alleged invention, 
or some other less innocent, as w-ell as less apparent, defect of character. 
The owners, or alleged owners, of these patent rights, are found, from 
time to time, in the neighborhood of our manufacturing establishments, 
denouncing infractions of their rights, threatening injunctions in Equity, 
and suits for damages at Common Law, — but winding up, generally, with 
propositions for an amicable adjustment, on terms mutually advantageous. 
Like the applicant for office, that Mr. Madison used to tell of, who began 
by asking for the emoluments of Secretary of the Treasury, but condes- 
cended afterwards to an Inspectorship of the Customs, and closed by 
soliciting a pair of cast off breeches, these gentlemen become progres- 
sively more reasonable as their proffers are refused, and are for the most 
part content at last to accept, as a black-mail compromise, an amount 
somewhat smaller than would pay the expenses of a defence against them. 
There is, indeed, no effective method, under our present patent laws, 
for testing the validity of an asserted patent-right, without first violating 
it, and thus encountering the hazards of a suit for damages. You cannot 
compel the patentee to come forw^ard, and sustain his right before-hand : 
on the contrary, the law almost invites him to lie by, and aw^ait infractions; 
as a spider waits for flies to infringe upon the fabric of his ingenuity, and 
only proves his strength after he has secured a victim to feel it. 

You see, at once, what a dangerous power this leaves in the hands of 
an unprincipled patentee, — how effectually, by the mere semblance of a 
patent-right, he may deter others from the use of processes or of machinery, 
to which he has no exclusive right in fact ; — since few men are sufficiently 
confident in their own opinions, or in the opinions of others, to invest 
large amounts of capital in a business, of which the legality may be dis- 
puted, and which, if deemed unlaw^ful by a Court of Justice, may be 
afterwards arrested by injunction, or mulcted in exemplary damages. — 
And thus in the result, the public is restrained from the use of inventions, 



which are in truth public property; having either been patented imper- 
fectly, or fraudulently, or never patented at all by the real inventor. 

There may be, and no doubt there are, other defects in our system of 
patent laws; but these, which I have indicated, are among the most ob- 
vious and important. They are, besides, as ancient as the system itself, 
and have contributed from the first to impair its popularity as well as use- 
fulness. We have all of us known ingenious men, who refused to patent 
their discoveries, preferring rather to retain a precarious and difficult, but 
exclusive enjoyment of them, by working in secret; and there are very 
few mechanicians, who have not been indignant at the frauds to w^hich 
the patent laws made it their policy to submit. 

The injury, which is retorted upon society by this imperfect protection 
of meritorious inventors, is more extended and full of consequences than 
it appears to be at first. The man who withholds an important discovery 
from the world, does not make others poorer, in merely the same degree, 
in which he hopes to enrich himself. He limits the circle of useful art, 
to which the ingenious suggestions of other minds might have expanded 
his invention. He holds back from his fellows, that strong incentive to 
progress, the knowledge of what another has achieved. He buries the 
talent, which should have yielded increase. He is eating the seed wheat, 
which should have ministered to the abundance of future harvests. 

Yet, it would seem as if these defects w^ere none of them really inherent 
in a system for the protection of inventive genius ; — though the remedy 
for them might, perhaps, involve some startling changes in our venerable 
forms of forensic procedure. 

No one who has studied political history, can undervalue the Trial by 
Jury, as a safeguard of popular rights. But I have not yet found the frank 
and well-practised jurist, who would be content to trust to its arbitrament 
an issue, involving large familiarity with science, acute analysis, or con- 
tinuous reasonings. 

The metaphysics of Social Life, which we denominate the Law, rarely 
challenge more refined and intricate discussions, than some of the ques- 
tions which arise under our Patent Laws. The diflSculty, which embar- 
rasses the learned in both sciences, is found, not in determining upon those 
abstract truths, which we call fundamental principles, and which to them 
are always simple, if not obvious, — but in selecting out from the mass of 
such truths, those which apply most directly to the particular case, and 
then in assigning to each its appropriate share of influence or control : — 
and a weary difficulty it often is, even for the best of us. But what must 
it be for those, whose minds have undergone no special training in science, 
— for whom there are no axioms, no starting points in argument, no defi- 
nitions, no vocabulary, no alphabet even ! — For, we think in words ; and 
cannot begin to reason, till we have been instructed in the language of 
argument. 

Imagine the feeling of a conscientious juryman, who is required to de- 
cide a question upon his oath, while he is absolutely ignorant of the very 
terms in which the question is expressed ! — and imagine, too, what confi- 
dence, what hope even, there can be for a party, that his rights will be 
understood and established by any action of twelve such jurymen! — Ex- 
cept to compute the damages which a patentee has sustained, after his 



6 

claim to damages has been made out, it is often difficult to apprehend 
what possible good office is to be rendered by a jury in a patent cause. 
Does it not savor of the grotesque, to call upon such men as compr.se our 
juries, to consider of the scientific controversies of chemists and mecha- 
nicians, — to follow Professor Henry perhaps upon inductive electricity, in 
some dispute between the telegraphs, — or to analyze the merits of Mr. 
Tilghman's method for the alkaUne chromates ! 

Now, why should this be? — Why not refer these questions to men who 
understand them, or at least to men who can be taught to understand them? 
When the English Judge of Admiralty is required to pass upon a dispute 
involving nautical skill, he calls to his aid experts in the art of navigation, 
ancient masters of the Trinity House, and is indoctrinated by their coun- 
sels : — In the same manner, the Judge of a similar Court in our own coun- 
try invites two or more experienced shipmasters to hear the evidence and 
arguments with him, whenever the question is one that appeals to a know- 
ledge of seamanship and the sea : — And so far as I have heard, decisions 
made under such circumstances have in every instance satisfied the nauti- 
cal community; — if even they have not had the more extraordinary good 
fortune of convincing the parties to the litigation. 

They have applied a similar practice in France, to the determination of 
legal disputes, between the holders of patent-rights, and those who are 
accused of infringing them. If the Judge does not consider himself con- 
versant enough with the art to which the invention belongs, to allow him 
to form a confident opinion, he appoints three artists, to enquire whether 
the alleged invention of the patentee is novel, and w^hether there has been 
an infraction of it by the defendant. The report, which is made by 
this commission, includes a full exposition of the questions of science or 
of art, which are involved in the case. It is open to a free canvass after- 
wards, by the counsel of the parties, before the Judge ; — and his adjudi- 
cation follows. I should think this feature of the French system, an ex- 
cellent one. We have something analogous to it, in our proceedings in 
Equity, where we occasionally invite a similar report from scientific men ; 
— but I do not see why it should not be introduced also into our actions 
at law, as a substitute for the jury trial, which we have inherited from the 
Eno^lish svstem. 

Nor do I see the necessity of leavmg the public in uncertainty, as to 
the extent or validity of a patentee's rights, until some one has been daring 
enough to violate them, and they have been vindicated after the infraction. 
The question may be settled just as well before, more speedily as well as 
economically for the patentee, and much more safely and beneficially for 
the pubhc. Here, again, I think the French law wiser than our own. 
*' Every man," says one of its commentators, (^Perpz^na, ch. 5, §2.) 
*' before he begins a commercial undertaking, w^hich may require the 
investment of a considerable capital, has a right to ascertain whether or 
not the supposed privilege exists ; because, as the patentee proclaims his 
exclusive right, every one concerned in the trade, w4th which the patented 
invention may be more or less connected, is in constant fear of involunta- 
rily infringing the patent-right, and running the risk of a prosecution and 
condemnation for piracy." The very moment, therefore, a patent is granted 



under the laws of France, every one has a right to bring an action for the 
repeal of it. 

Not only would I be disposed to allow every one to contest the validity 
of a patent-right, in advance of a law suit to recover danaages for infring- 
ing it ; but I would admit no controversy as to the validity of a patent, 
in a suit founded on its infraction. I would hold letters patent under the 
great seal of the United States, to be conclusive evidence of their own 
validity, so long as they remain unrevoked by a judicial determination. 
But I would permit the man, who is charged with violating them, as I 
would permit every other man, to institute proceedings for revoking them 
at any time. 

Of course, such proceedings, to make them conclusive upon the public, 
must be well guarded against collusion and abuse. They should be con- 
ducted with great publicity, and preceded by ample notice, — the specific 
grounds, on which the patent is to be contested, should be clearly and 
fully declared beforehand, — all persons whatever should be allowed to 
join in sustaining them by facts and arguments, — and the Attorney of the 
United States for the District, or perhaps a professional representative of 
the Government, specially appointed to attend upon such investigations, 
should take part in the case, though without so controlling it as to thwart 
the action of others. But when such a controversy has been conducted 
publicly and fairly, I see no reason why the patent, if found fraudulent or 
defective, should not be declared to be so as to all the world, and there- 
upon revoked, — nor why, if the patent has withstood successfully the 
assault of all comers, it should not be exempt from future controversy upon 
the points solemnly adjudicated in its favor, — leaving it open to impeach- 
ment thereafter only upon grounds not before in contest. 

A patent, renewed after the expiration of its first term, for causes such 
as now justify a renewal, — signal merits, namely, and inadequacy of com- 
pensation for the good rendered to the public, — I should hold for that reason 
alone, protected against all further attack on the score of originality or 
usefulness. Fourteen years, either of general acquiescence in his title, or 
of successful litigation in defence of it, should earn for the meritorious and 
ill-rewarded patentee a parting season of repose. Solve Senescentem. 

This is not an occasion, which could tempt me to elaborate the details 
of such alterations as I have suggested ; and I am sensible, that it must 
be the work of more time, and more familiarity wuth our patent system, 
past as well as present, than belong to me. But it is conceded, that the 
law as it stands is sorely in need of revision ; and it is perhaps the duty 
of every one, who has been constrained to remark its defects, frankly to 
suggest what appears to him the most simple and eflfective remedy. 

I trust, too, that I shall not be thought to have chosen an improper 
forum, before which to make these suggestions. There is no Institution, 
that exerts so important or so beneficial an influence over the inventive 
genius of our countrymen, as that before which I am standing at this 
time ; — there is no body of men, among whom it is so easy to find intelli- 
gent and skilful counsellors, upon every question, which can interest our 
mechanics: — and I do not know of any, whose judgment I v^rould so 
cheerfully defer to, on questions connected with the patent laws. No one, 
who remembers what mechanics and the arts were in Philadelphia, and 



8 

who sees what they are, but bears grateful testimony to the value of the 
lectureships of the Institute, its public meetings, the labors of its commit- 
tees, its exhibitions, and its system of premiums, in elevating the tone of 
our industrial classes, improving their modes of work, stimulating the 
spirit of invention among them, and enlarging their sphere of thought. 

The effect of all this action upon the progress of mechanical science 
among us, must go on continually increasing. In the old countries, 
as manufactures have become matured, the division of labor has had 
a manifest tendency to check improvement in the arts. The artific" 
whose whole business of life is to graduate an arc, or to set the knife ed 
of a scale-beam, will no doubt become apt at his work ; — but he can; ; 
be expected to devise modifications of the theodolite or the balance. f 
he were even to imagine a change for the better in the work which for ; 
his limited department, he could not carry it into effect ; for he knows » 
little of the rest of the machine, to enable him to modify its parts, so 5 | 
to admit his improvement. j 

But here, — thanks to the Franklin Institute, which has made our j - [ 
chanics mechanicians, — and thanks, too, to our system of common scho , j 
which encircles us with a community of intellectual men, — and tha s b 
more than all to the spirit of our political institutions, which stamps 1 i- 
gress on every thing within us and around us, — the American arti' ;r 
cannot be made to cramp down his thought to the single object of is 
daily toil. He has asserted his claim to the dignity and the rights of r i- 
hood, "looking before and after," at the past from which he has r: n, *^ 
upon the future to which he aspires. It may be, that he makes a hi e- 
shoe nail more slowly or less neatly than his European grandfather oj le 
trade was wont to do ; but he is thinking out a machine, which will r ie j 
it for him twice as well and a hundred times faster. '- 

To such a man, the teachings of the Institute are of inestimable "v le. . 
Besides the acquaintance which they give him in those departments lat > 
are kindred to his own, they suggest to him topics of enquiry and e? :ri- j 
ment ; making him familiar with w^hat others have done already, am is- 
tinguishing for him between that which lies within the possible lim^- of 
art, and that w^hich the laws of nature have placed beyond them : — thus 
dividing him by a broader line from that ancient fraternity of empirics, | 
the so-called practical men, the self-taught, self-conceited, self-vaunting 
blunderers of the work-shop. 

I have only one more observation to make, — and I pray that it may be re- 
ceived with indulgence. The power, which is appropriate to an Institu- 
tion, constituted and conducted as this has been, imposes a corresponding 
responsibility on its members. I do not mean, in their aggregate capacity: 
that is too obvious to call for remark. But the reputation of the entire 
body is reflected upon its members ; and each of them exerts, however 
unconsciously, an influence, which should not be misdirected. The num- 
ber of new inventions, which is called for by the growing competition of 
Industry in all its walks, and which the utmost efforts of mechanical inge- 
nuity are scarcely adequate to satisfy, is daily making it more and more 
difficult to define the exact extent of each man's rights as an inventor. 
What combination shall be regarded as essentially new, where the elements 
employed are old, and both the object and the result are old also, is some- 

3477-67 



I 



times a question of the nicest casuistry. As a consequence, all who have 
interests to subserve, either by the success or the overthrow of a contro- 
verted patent-right, are indefatigable in their efforts to secure in advance 
the testimonials of scientific men in their behalf, — well knowing how pow- 
erfully these may be employed in pre-occupying public sentiment. The 
importance, which so justly. attaches to your opinions, gentlemen of the 
Institute, — the difficulty, not always apparent at a glance, of arriving at 
correct conclusions without special examination, — and the magnitude of 
the interests, which maybe affected injuriously by a judgment, hastily 
expressed, — these together form an argument for the gravest caution, 
whenever you are individually solicited to take a position, either favorable 
or adverse, to the claims of a patentee. 

In conclusion, I perform a most grateful office in congratulating my 
brother-members of the Institute upon its condition and prospects, and 
thanking them for the attention and courtesy with which they have listened 
to me. 



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